tv Supreme Court Landmark Case Miranda v. Arizona CSPAN December 19, 2015 7:00pm-8:36pm EST
court are asked to give their attention. >> landmark cases, produced in corroboration with the constitution center, exploring the dramas behind 12 historic supreme court decisions. >> quite often, in many of our most famous decisions, the ones the court took were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million people who need to live together. >> good evening and welcome to the landmark cases series. tonight, case number 11 out of 12.
this was a 1966 case that helped revolutionize policing in america, miranda versus arizona. >> you are under arrest. you have the right to an attorney. you have the right to remain silent. anything you say can and will be used against you in a court of law. >> do you understand your rights? >> yes, he explained them to me, just like they do on television. >> you have the right to an attorney. >> anything you say may be used against you. >> you have the right to remain silent. >> you have the right to remain silent and anything you say can and will be used against you in a court of law. you have the right to speak to an attorney.
>> as you can see, miranda rights became part of our natural -- national culture. we are going to learn more about them tonight. we have the president and ceo of the national constitution center. for our regular viewers, you know he is our partner in this series. he has written several books about the supreme court. thank you for being back. we also have a former federal judge for the district of utah from 2002-2007. he also served as deputy attorney general and is now a professor of criminal law procedure at the university of utah. what are the constitutional issues in the miranda case? >> maranda tries to settle a question that has been around the country for several hundred years. how much pressure can police
officers put on a suspect when they are trying to get information and what rules will dictate whether a confession can be used in court? >> what is it about this case that made it a landmark? >> it transformed the culture. look at all the tv shows. i was trying before the show to see if i could do it by heart. you have the right to remain silent. anything you say can and will be used against you in a court of law. you have the right to an attorney. if you cannot afford 1, 1 will be appointed to you. that is so simple to the culture. when chief justice rehnquist affirmed maranda, he said it has come to be accepted by the culture. how many cases can you say that about? >> in the 1940's, 1950's,
1960's, let's talk about policing in this country. we are currently in a debate about policing tactics. why is that? >> what we saw in the country was a significant improvement in policing. in the 1930's, the third degree, putting pressure and threats to get confessions was a widespread tactic. in the 1940's and 50's, those tactics started to disappear. then the question was, all right, if question is an going to be used in the form of physical threats, our officers going to use psychological tactics and techniques, and what kind of regulation should there be on those? those are the issues maranda wrestles with. >> looking at the country at that time, were there any regional aspects to this? cases where for example blacks in the south had more problems with prosecution. >> there was a huge debate about police brutality and it focuses
on the south. as paul said, in the 1930's, confession had to be voluntary. you could not literally beat a confession out of people. since 1961 and a report finding widespread police brutality in the south -- there is still a debate about how much that is going on. the war in court issues a decision in 1960 one, basically applying exclusionary rules. 1963, you have to have a lawyer present during with -- during police interrogation. so it's using the fourth and fifth amendment to address what it perceives to be a real problem of police brutality in the south, and that is the background against which this case is decided. >> we will spend more time on the warren court makeup and why they took this on, but let's
tell the maranda story. who is he? >> we can talk a little bit about the victim shortly, but maranda was a repeat criminal who had been arrested numerous times. i think it's fair to say he was a drifter who did not have established employment or a place to work. on the night in question, he at the -- he abducted a woman and assaulted her. so the thing going on simultaneously with miranda committing this crime is that violent crime is skyrocketing in america. whether it is the war in court or's -- warren court or something else responsible for that, that is part of the backdrop as well. >> her name is patricia. she was leaving a movie theater in phoenix, arizona, and on the
way home she was kidnapped, assaulted, robbed, and then driven back to her home. it was a very serious crime. how did legislation proceed from there? -- how did things proceed from there? >> the next week there was a robbery and witnesses see a car that seems to belong to miranda. he is accused. he is taken down to the station. there is a dispute about whether or not he is actually told his rights. the fbi did not read rights of the time. but essentially, he signed a confession saying i didn't and he is convicted. and then he claims he was -- i did it and he is convicted. and then he claims he was never read his rights. makes this interesting is that the detective who arrested miranda is still very much with
us, still with the phoenix police department, and he gave us a tour, and they have a display there. he tells us a story from the phoenix police department's point of view. let's watch. detective: when she first looked at the lineup, she said it looks like the number one guy. the number one guy was ernie miranda. i said are you sure? she said well, it looks like him. maybe if i heard his voice i could make a positive id i didn't say anything. we went back in the room. i waited a while. ernie asked me how did i do? i said you didn't do so good, ernie. he said i had better tell you about it then. i said that would be a good idea. and he did. he told us about the kidnapping, assault, and robbery. after he told us, i said would
you sign a written confession which says at the beginning of the form i did this statement voluntarily without coworker and threats, promises of immunity, no -- coercion, threats, or promises of immunity, knowing my legal rights. the writing was excellent and the spelling was accident. and the description of the act was accurate. this is the entrance into the old city jail. miranda would have been brought in here and processed like any other prisoner, searched, shown his new quarters over here. we have four identical tanks. this particular tank is where he
was kept. it's what we call the felony tank. he would have been booked into here. it may have been a week. at may all may have been a couple of days. -- it may only have been a couple of days. >> what is it that right off the bat lead the system to get interested in this? >> it's almost a perfect test case because this is not a case where someone was beaten to get a confession. it's one where the police used some tricks. they said she identified you. psychological pressure was brought to bear. one of the other interesting things is that miranda ends up radically changing the rules. in 1963, when this interrogation took place, there was not a
single precedent in america that would support throwing that confession out. when chief justice warren another started to get interested in this issue, that changed. >> what happened to him? >> he was challenged on sixth amendment grounds because the court said he had a right to counsel during interrogation. >> he was convicted on both. he was convicted and sentenced to 20-25 years on robbery and kidnapping and it was to serve all concurrently in june of 1963. then we go to the challenge. >> we go to the appellate court of arizona, the constitutional challenges the sixth amendment
-- challenge is the sixth amendment. the only question was whether there was a voluntary violation of the sixth amendment. >> so, the sixth amendment says what? >> that you have the right to effective assistance of counsel. the argument that miranda's lawyers are making is that when he was talking to the detective he did not have a lawyer. he should have at that point. the problem with that argument is that for 170 years of american history, you get a lawyer once you go to court. the fifth amendment says you have the right not to be compelled to be a witness against yourself. witnessing occurs in court, so under the precedents that existed, this is not the problem at all.
and that is why the lawyers are trying to get to the supreme court. >> we keep trying to explain how the process works. so he did not have his appeal upheld in the arizona supreme court. how did it make its way to the federal supreme court? >> you have to file a petition. the supreme court has to agree to take the case. there was a dramatic, related case called the gideon case. there is a wonderful book called gideon's trumpet that everyone should read if they haven't yet. gideon is the defendant and says i was wrongly convicted because i didn't have a lawyer for my defense and the court, overturning the previous role, says -- rule, says you are entitled to counsel. they brought in a lawyer call john frank who clerked for justice black and was a yell law
professor -- yale law professor. distinguished constitutional scholar. and they brought in john flannery, who could argue very well. once you get the big guns like that, the supreme court gets interested. >> john flannery served as counsel for anita hill. >> very distinguished lawyer. miranda goes from someone in the bowels of the interrogation room to someone who now has the most high-powered legal team imaginable and is before the supreme court. >> we have this tweet. comments about that? >> the question is what kind of liberty we should uphold. for 170 years, there was no rule that the statement of the type
maranda was making would be inadmissible in court. -- miranda was making would be inadmissible in court. the problem with miranda, frankly, is a go so far, the pendulum swings so far in the direction of protecting the accused that the women who are attacked are given short shrift. >> i should add that the chief justice of the supreme court disagreed. we can certainly have a good discussion about how they used the fifth and sixth amendments, and we could talk about the history of the fifth amendment.
>> the problem with miranda is that it isn't just reading a few words off a card. the problem is what i would call the exclusionary aspects. it sets up rules that say you cannot question certain people. if you do certain things, evidence can't be used. it's all a procedural apparatus associated with miranda that frankly, today means tens of thousands of criminal cases are going unsolved every year because of procedural requirements. >> we will get back to that later on when we talk about the consequences of this and other decisions by the warren court. the last case we did in this series was from 1962, and a couple of new justices have been appointed to the court since then. how does the dynamic of the court change with these new additions? >> fortis had literally been appointed by the warren court to
represent gideon. so he is acutely interested in he is an lbj supporter. he got in trouble when lbj nominated him to be chief justice advising lbj on certain there was a balance on both sides. essentially, the most striking thing about the war in court is look at all the former judges and politicians on this court. hugo black, a former police court judge in alabama, saw the third degree firsthand. there is another great biography your viewers have to see, called -- it's a great biography of hugo black that describes how as a lawyer he is trying and
hispanic defendant, and he brings the defendant up and closes the shades so that the defendant looks kind of menacing. he says i just want the jury to take a look at that man. later, he regrets that tactic. he saw how the system could be abused. tom clark, a former politician as well, and most important, of course, we have to talk about earl warren who was the district attorney. he has prosecuted these people. he accused some of them in a previous case that was about how defendants can be sentenced for a huge amount of time because of procedural factors beyond their control. these are not ivy league judges. they are practical politician -- ivy tower judges. they are practical politicians who understand how the system works.
>> his own father was murdered in a robbery. put that into context about the views he brings to the court. >> i think he headed on the head. there were a large number of politicians on the supreme court at this time. frankly, in my view, and in many others, they had not successfully made the transition from politician to have their own views, impose those use, and pass legislation. now, shifting into a judicial role where their duty is to interpret the law, not make the law, when they see something about a police interrogation, politicians can pass laws and
regulations and do different things, and five judges on the court were ready to do the same thing through supreme court decision making. that is one of the legacies of the decision-making approach, not to look at the narrow facts of the case, but to throw out some rules that the country had to follow. >> you have used the expression the third degree. where does that come from? >> the third degree has to do with beating. you take it one degree, then one more. in the context of this case, the third degree means a kind of coercive pressure that does not involve physical violence. we have to tell this story because the court tells it in the miranda decision. this is the story of john loeber. during the british star chamber, if you were a heretic, you could be summoned before the star chamber and forced to take an oath in which you promise to truthfully answer any question,
even if you did not know what it would be. if you are a dissenter and asked if you were a protestant, you could lie and go to eternal damnation, as was the you -- the view at the time, you could tell the truth and be burned as a heretic. so the dissenter said no man is bound to accuse himself. that principle is a form of the third degree that if you are called before a body and require to answer questions that no person who has human dignity should be forced to answer is what the court is trying to channel. the beatings of the 1930's which were permissible under the old standards, and now the court is trying to take this.
this puritan era history and say how can we honor the words of the fifth amendment today? post: we have a video of chief justice earl warren talking about the third degree. let's watch. chief justice warren: the third degree was a common thing 50 years ago. one had to watch for it very carefully to see that it was not committed. i think comparatively few law enforcement officers are addicted to the third degree and it's because the courts have deplored that kind of conduct and have said if that kind of conduct is indulged in by the police, that a man is not given a fair trial, and therefore his conviction cannot stand. certainly, that is in the
interest out of the particular defendant alone, but in the interest of everyone. >> what would you say about this? >> when you talk about the third degree, i think chief justice warren hit the nail on the head. comparatively few cases involved the third degree. the tactics had long been outlawed by the supreme court, so what you are seeing, i think sometimes when people talk about the miranda decision it's something of a bait and switch. people had been tortured to give confessions so we need the miranda rules. of course, the miranda rules aren't really designed to address those kinds of things. that had already long been abolished by the supreme court, and the real question that we should be talking about and i think the supreme court should have been talking about more directly in miranda was the psychological tactics the officers used.
since the fbi had such a rule in place of the time, were loads of federal crimes and solved? >> the fbi had nothing like miranda. they had something like you have the right to remain silent and we will get you a lawyer when you go to court. miranda sort of garbled what the fbi was doing and said we will impose the same thing. but if miranda had imposed the same rules the fbi followed, i don't think it would be the most controversial criminal procedure decision in the history of the united states. but what chief justice warren did was take some rules and create a vast, exclusionary rule apparatus that throws out all kinds of confessions and imposes all kinds of prohibitions on asking even reasonable questions. >> comments? >> we will talk about what its effects were later, but the cops came to feel that it was far
less than both sides had asked for. essentially, there were two pole positions at stake. each side wanted a blanket rule that you have to have a station house lawyer -- one side wanted a blanket rule that you have to have a station house lawyer there at all times and no one can be questioned without a lawyer. the cops wanted the opposite. they wanted that once you were warned it was presumed that the statement was voluntary unless you set the magic words "i want a lawyer." when i teach law, i say if you are ever interrogated by the police, say the magic words, "i want a lawyer," because that is when the interrogation has to stop and you are hugely empowered.
we will talk later about how many confessions that led to having overturned. many people say it didn't decrease that many confessions, but warren is doing three things. first, you have to read the warning. second, if you ask for a lawyer, interrogation stops. third, if you waive the rights, it has to be knowing, voluntary, and intelligent and it puts the burden on the cops to prove that. >> so, he was looking for a way to address this and he told his clerks to look for cases that might fit the bill. when the cases came before the court there were four. miranda and -- talk about the other three. >> they were cases designed to provide the supreme court with a full picture of police interrogation in america. one is the one we're talking about. then there was westfield versus united states.
that was a federal case and the solicitor general of the united states argued in front of the supreme court. that's thurgood marshall, who was just a few years later appointed to the supreme court, and he was arguing against miranda rules because they would affect state law enforcement agencies as well as federal law enforcement agencies like the fbi. >> so, the four cases go before the court. how does the process work? >> a lot of arguments take place over time and a lot of phenomenal lawyers argue them. in addition to thurgood a great fourth amendment scholar who had been a lawyer at nara burke is arguing for the state of new york. -- at nuremberg, is arguing for the state of new york.
you have two civil libertarian heroes, marshall and taylor. >> this game to the court from february through march of 1966. 10 lawyers were involved and argued more than seven hours spread out over three days. we don't see these kind of sessions very often. it got very complicated because of the numbers of cases and lawyers. talk about that. array of issues that had come up during police interrogation -- and one of the things that is striking about miranda in retrospect is how much it departed from the ordinary approach to judging and the ordinary approach to judicial process in this country. typically, you take the facts of the case and there are rules to
address those particular facts. but again, keeping with the idea that many of the justices were politicians wanting to announce some broad and sweeping rule, they set up the case so that it would be designed almost to a legislation and regulation, whatever you want to call it -- to allow traditional legislation and regulation, whatever you want to call it, to come out of the issue. >> john flynn and john frank were the two lawyers with john flynn making the argument before the court for miranda. arizona's assistant attorney general gary nelson made the argument and the attorney for the national district attorneys association. anything noteworthy about the argument? paul: one of the things that's quite striking, we mentioned what a strong legal team miranda had. their team was arguing the sixth
amendment. miranda's brief doesn't argue that the fifth amendment was violated, the reason being that the fifth amendment was limited to the courtroom so the fifth amendment was not something that was the focus of the oral argument or certainly the briefing. we'll talk about how the decisions comes about but there is a disconnect between the arguments advanced and the decision that comes forward. host: we welcome your participation in this conversation tonight and the lines for dialing in are divided geographically. eastern and central time zones, 202-748-8900. if you live in the mountain or pacific time zones, 202-748-8901. you can also send us a tweet, #landmarkcases. and the facebook page has a
conversation underway. three different ways to be involved, by phone, by tweet and by facebook so please join the conversation. jeff rosen? jeffrey: just a brief response. flynn did mention the fifth amendment in oral argument. he said to justice stewart, if a man knew his rights, if he recognizes he has a fifth amendment right to ask counsel, then it is ok. that is key to overcoming inequality and coercion in a police station. paul: the next year he says when we talk about the effective assistance of counsel, you should know what i did, i briefed and argued the case entirely on a sixth amendment proposition and now the supreme court goes and decides it another way. frank himself and flynn wound up saying were we committing , ineffective assistance of counsel because we were arguing
one thing? host: the questions before the court in these cases -- is a confession admissible in the court of law obtained without warnings against self incrimination and without legal counsel? who determines whether a defend his legally waived his or her rights? what is the standard for judging whether voluntary confessions are admissible? and fourth, when should an attorney be appointed for a person when he or she cannot afford one? so we're in the in era where the supreme court has begun recording audio of oral arguments and next you'll hear a , little bit from the two opposing attorneys and we'll listen to some of the case as they made it. >> the only person that can adequately advise is a lawyer. that he had the right not to
incriminate himself, that he had a right not to make any statement, that he had a right to be free of further questioning by the police department and he had a right to be represented adequately before the court and if he was indigent, the state would furnish him counsel. >> i agree with mr. justice black 100% that the fifth amendment, sixth amendment, every part of the constitution applies to everyone, poor, rich, ignorance, intellectual, there is no possible basis for differentiation. i don't argue that. but miranda, i think, characteristically by the petitioner is portrayed in this light in an attempt to make something that isn't there. host: jeffrey rosen, what did you hear there? jeffrey: he's not arguing that the confession is compelled by
gunpoint. flynn is not claiming that so we're not talking about the third degree. squarely, both lawyers are struggling to use the sixth amendment which the court has , said applies during interrogation, and also the fifth amendment. they're also trying to come up with an alternative to the standard that the court already uses which is called the totality of the circumstances test. in a case called spano, chief justice warren had listed an opinion saying to look at all the characteristics of a defendant. was he foreign born, did he speak english well, did he understand his rights? and it was an open ended test. that's why the lawyers there and other parts of the argument were stressing miranda wasn't well educated and didn't understand his rights but in the years since spano, the justices and society had come to believe this was just too unpredictable to overcome the coercive pressures
of the station house. that's why you hear the lawyers saying, the fifth and sixth amendments apply to everyone regardless of their station, it's not appropriate to make these case-by-case determinations and they're asking the court to come up with a bright line rule to protect all defendants. host: what did you hear? paul: i hear two arguments, one is the doctrinal argument that while this statement may not have been involuntary in a traditional sense, we think there was a lot of rusher -- a lot of pressure there. the problem with that argument is that for hundreds of years these statements were admitted so the supreme court is , grappling with throwing out everything before and announcing a new rule. the other thing is a pragmatic concern, because if you take the arguments that are being made seriously and say miranda should have had a lawyer during police interrogation, the lawyer will say say nothing whatsoever and
if you go with that route, you end up with no police interrogation in america. host: before we learn what the judges said, the court's final decision, let's listen to some of our callers. first is josh from iowa. hi, josh. caller: my question is, from what i know, it seems like chief justice warren, having been a district attorney, wanted to expand the rights in the illinois v. escobedo case. why was he so interested in expanding the rights in that case? paul: i think one of the things going to in the 1960's is the notion that criminals are a product of their environment and may not be as accountability for their decisions, they haven't gotten a high education as we heard with miranda. so against that backdrop, i think it's a perverse interest
in cheering for the underdog that somehow police officers have outwitted suspects when they come up with something that gets them to confess. so that, i think, is a strange backdrop to the decision. jeffrey: the notion of chief justice warren as soft on criminals isn't convincing. this chief justice wrote terry v. ohio, one of the most pro law enforcement decisions ever written which says the cops are allowed to stop you and pat you down on reasonable suspicion without a warrant. but warren did care about human dignity. he was troubled when he wrote the spano case that the guy that ended up killing someone may have been acting in self defense but according to the state rules , at the time was liable for a big prison sentence. so he didn't think the totality of the circumstances test was protective enough at a time when he was troubled by police
violence. he understand the third degree and understand what was going on in the south. so far from being an aclu guy who wants to stop interrogations by requiring a lawyer at all times, i think he's trying to come up with a compromise to restrain the police when he thinks it's necessary. host: braxton is up next from long beach, california. caller: my question is, miranda rights brought into play. the question was, when was htswhat were the fbi's rig and how was it presented? paul: the f.b.i. said they instructed special agents to tell people they had the right to remain silent and anything they said could be used against them and those are the rights that were given to miranda but himself.
but with respect to whether or not they could have an attorney, the f.b.i. had never done the sort of thing that was under discussion and we'll talk about in the opinion. they had never done anything that is look, if somebody says , they don't want to talk, the f.b.i. has to stop asking them questions. that's the frankly radical step miranda takes, and the one that's been harmful to law enforcement from that day to today. host: celeste from tulsa, you're on. caller: my question for your guest is how long did it take for this case to reach the supreme court? host: celeste, before you go, tell me about your interest in this case as a middle school student? caller: my social studies teacher brought this up and he says if we get on, we get extra credit in the class.
[laughter] host: good for you for getting on and getting extra credit. thank you for participating. congratulations. jeffrey: it's wonderful to get extra credit. you can also tell your teacher we know the crime occurred in 1963 and the case came down in 1966, so it took three years between the crime and the decision. host: is that a long time in the supreme court context? jeffrey: no, it seems like goldilocks, just right. host: next up is glen in freeland, michigan. caller: thank you very much, everyone. my question is about -- does miranda apply to legal and illegal aliens? specifically i'm thinking about that case in san bernardino where it blurs the line between regular crime and terrorism. if the lady was i guess was a legal alien, if she had survived and they were looking at it as a terrorist case, would miranda
have applied to her specifically, for example? host: thanks for your question. jeffrey: it's a great question. to note, the question to what degree miranda applies to terrorism suspects abroad is an open question that the courts are deciding now. they haven't definitively decided whether suspects interrogated outside of the territorial united states for terrorism need their miranda rights. my understanding is that the interrogation of anyone within the united states would need to be read their miranda. paul: jeff is right on that. the miranda decision extends rights to everyone inside the united states. you can have interesting questions about what if an f.b.i. agent is overseas and how do the rights come into play in that situation. you could also have interesting questions that come up in what are called public safety situations. if there was a ticking time bomb that a terrorist set, the supreme court has suggested that
maybe in those narrow circumstances, miranda warnings may not need to be given because of the public safety concerns. host: a twitter question, which asks does miranda apply to , foreign combatants on u.s. soil? paul: it depends. are we talking about a military context or a civilian law enforcement context. in a civilian context, miranda does apply. host: jim in california. you are on. caller: i'm a retired attorney and i began law school in autumn of 1966 and my criminal law professor, fred inbow, at northwestern known as freddy the , cop, really did not like miranda. he was adamant about how dangerous it was for police work. and i just brought back that remembrance.
but also, judge cassell, you were talking about the court having politicians on it. i think one could say that the court now perhaps has too many judges on it and not enough perhaps people from outside the appellate court and supreme court clerk circuit. i don't really like the way it's gone in recent years. any rate, thank you. paul: he mentioned fred inbow , which is really interesting. inbow had written the police interrogation manual with different techniques and tactics and so forth. i think one of the reasons professor inbow was disappointed in the miranda decision is he discovered all of his techniques and tactics were quoted as the reason for the supreme court needing to step in and regulate police interrogation. the big irony is the miranda decision does not restrict psychological techniques inbow . -- inbow used. so he reworked his textbook the
next year and it became a best seller because after all, what better book to look at than the one cited by chief justice warren? host: springfield, virginia, you're on. caller: i just wanted to point out that the supreme court did not just rush to the exclusionary rule as their first attempt to curtail this activity by the police. there had been a whole series of decisions leading up to it. the court seemed to be convinced that the only way to get police to follow the rules they were laying down was to lay the incentive for them to violate the law by telling them, if you do this, we're not going to allow the evidence to be used. i think that's an important factor being glossed over. jeffrey: very important point. absolutely miranda is not coming out of nowhere. the decision from 1961 applying the exclusionary rule to the states arguably has as much or more practical importance than
miranda itself and miranda can be seen as a pro police decision, as paul says, ironically, it didn't prevent the use of trickery or deception and in some ways it inoculated the police. all you have to do is say the magic words and you can use the same interrogation manuals that chief justice warren is impressing concern about and we learn about their origin. think of all the things miranda didn't do. it didn't require the videoing of interrogations. it didn't actually substantively prevent deception or trickery for all those reasons. the court wants a bright line rule, but it didn't uniformly disfavor the police. host: we can hear the continuing debate over miranda all these years later. and it was a divided court. it ended up being a 5-4 decision. warren, black, brennan, douglas and fortas. the minority, clark, harlan,
white and stewart. is there a backstory to how they came to the split decision in this case? paul: one of the things we have been talking about is the f.b.i. practices. chief justice warren pushing for broad regulation of the police, said, look, the f.b.i. is already administering this, it wouldn't be a problem to extend the practice to other agencies. the problem is that the f.b.i. had not been doing anything like the sorts of things that miranda ended up opposing, not just federal agencies but every agency in the united states. host: from time to time we've heard stories about justices finding coalitions to bring them to their side. are there any good stories in the miranda case that convinced somebody to go to one side or the other in this one? do either of you know? jeffrey: i don't know. paul: i know there was some
debate about and the f.b.i. warnings were included. i also know they've gone back to look at some of the draft opinions that were written. one of the things that was added in the decision at the last minute was a statement that this was one way to regulate police interrogation, but we leave it open to congress and the states, maybe they'll come up with other ways to regulate police interrogation. so that compromise, at least verbally articulated or in the decision, articulated compromise, was critical to building the coalition. jeffrey: the f.b.i. warnings are quoted in the miranda decision. here's what the f.b.i. said at the time. if any person being interviewed after warning of counsel decides he wishes to consult with couple of before proceeding further, the interview is terminated, f.b.i. does not pass judgment on the ability for the person to pay for counsel. go to the national constitution center's phenomenal interactive constitution. you can see paul cassell and kate stiff with a beautiful
common statement about what miranda means. constitutioncenter.org and i've got to do the plug now because it's so cool. sure, put it under your camera. you can read the fifth amendment on this side, you can read the fifth amendment in all of its beauty and you see this statement where professors cassell and stiff talk about what everyone agrees the text was, the history was. i think it's so inspiring that you were able to come up with a common statement and separate statements about your disagreements. that's a great place for viewers to understand the decision. host: the chief justice chose to write the opinion himself. it was 60-plus pages. and he read it aloud in the courtroom in its entirety. how often does that happen? paul: not very often and certainly not with 60-page opinions. you can imagine it took several hours to do that but i think everyone knew when the decision
came down, it was a landmark decision that would have reverberations to echo for years and years. host: and in fact the miranda rules were written into the decision so the text was really excerpted and became what we heard at the outset, used so often in police and crime dramas. here's a bit of chief justice earl warren's opinion. "at the outset, if a person in custody is subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent." the fifth amendment privilege is so fundamental to our system of const divisional rule, we will inquire as to whether the defendant was aware of his rights without a warning being given." what are you hearing there? paul: one of the things i think is strange about the decision is there are 50 pages of text and only until the last two pages do
you get to specifically discussion about the facts of the case. a lot of commentators have said it reads like a legislative report with an attached statute and so there's a truly legislative feel to the decision that is at odds with what most of the decisions today look like. jeffrey: i think it was true to the spirit of the fifth and sixth amendment and not think it was radical but agree it does have a legislative quality. warren says at the beginning, middle and end, this is what the rules that we want the cops to read. that they seem to be taken from the f.b.i. reports and other sources but hadn't previously been part of state criminal law on a broad scale led to fierce criticism that it was, indeed, legislative, and set off a political firestorm. host: before we get to the aftermath, we should tell the rest of ernesto miranda's story.
what happened to him next? he's just won this landmark case in the supreme court so what happens legally? jeffrey: he is paroled in 1972. arrested in 1974 for violations. he goes back to prison, after his release, he goes back to his old neighborhood. he actually sells miranda cards, autographing them, and that's how he makes his living in a poignant moment. in 1976 he's playing poker in a bar, there's a fistfight, he's fatally stabbed with a knife and killed. in his pocket are found copies of the miranda warning. host: he also tried to appeal his conviction to the supreme court. he was not successful, right? paul: he was reconvicted because of a confession he made to his wife, of all people, is admitted.
it turned out that because she was merely a common law wife, the rules of spousal privilege did not block of use of that confession. so the only reason he was convicted was he gave a confession to his wife, rather than the police officers. the police officer's confession was thrown out, but not his wife. host: here's an interesting coda to ernesto miranda's tale, killed in a bar fight with the miranda cards in his pocket and his killers, when arrested, were read the miranda rules. we have the officer you met early on, the arresting officer in the case, adding more to the story. let's listen. >> after the supreme court decision, in 1966, the various departments around the state and the country developed their own miranda warning cards based upon the decision. the cards that we have here are the original cards that we had
miranda sign as a souvenir after he got out of prison. and then we had the revised cards which are below it and that is the one in english and the one in spanish on the back. the revised cards did not require a signature. now, miranda used to get these cards from police officers and he would see in this downtown area and he would introduce himself as the famous ernesto miranda. he would ask officers if they had any spare cards. and they would freely give him some cards and then he would take those cards and sign them and he would try to sell them for a dollar or two. host: there is the arresting officer's story of the person who gave his name to the miranda rights. i'm going to go back to calls and get some more of your comments and reaction and questions with this.
next up is john, westchester, pennsylvania. hi, john. caller: my understanding is that you can only invoke your right to have a lawyer present when you are being interrogated. can you please clarify at what point you're being interrogated and if it can happen only in a police station or other places? paul: my students were taking their criminal procedure exam this morning and the miranda rules are triggered when someone is in custody, when they've been taken into the police station, as miranda was. typically they don't apply when someone's being questioned in they're home or on the street in the aftermath of the crime. the other part is interrogation. police officers have to be asking questions or the functional equivalent of asking questions in order to bring the miranda rules into play. host: next is a call from brad, who is watching us in california. hello, brad.
caller: i was detained for a d.u.i. stop and the officer on duty gave me the field test. although it seems dramatic that the police are allowed to extract information from you without your consent, because you're not incriminating yourself with your own words. host: laura from philadelphia. caller: this goes back to something that professor cassell said a while ago. if i understand you correctly, it sounds like you're saying
before 1963, 1966, police giving the third degree to suspects is worse than it is now. hasn't there been a lot of information coming out recently about false confessions? my understanding is that the situation hasn't improved. paul: let's talk about false confessions. one of the things about the miranda decision is the overprotection of some people and under protection of others. it overprotects professional criminals. they lawyer up and ask for an attorney and no questions can be asked of those people. on the other hand, if you're innocent, you haven't committed the crime, the first thing you do is waive your rights and you want to talk. there have been documented cases of mentally retarded persons or others who have been convinced they committed a crime and talked into false confessions. miranda doesn't do anything for innocent people.
something like videotaping might do good for innocent people but , miranda, has been, i think it's fair to say, a complete disappointment for preventing false confessions. host: i don't know if you can answer the hypothetical, tom curry is a journalist. what if, would miranda decision have been issued if tom dewey-earl warren ticket had won the election? jeffrey: earl warren will not be chief justice, but on the other hand we have a moderate republican president, dewey, who still might have appointed a moderate republican like warren . warren's great achievement was as a statesman. we talked about how he was able to bring his colleagues together. whether you think it's legislative or an act of statesmanship, it was this practical politician from a
republican party that at the was not that happy time -- at the time not much tougher on crime than democrats were, who was able to come up with this ruling. as i think aloud, although there is no one like earl warren, you could imagine another moderate republican chief being appointed who might have come up with a similar decision. host: steve from tennessee, hi, steve. caller: hi. i got two questions. one, is there a statue of limitations on when somebody can file an appeal when they feel their miranda rights have been violated? i was involved in something when i was 19 years old and i was forced into silent confession. not physically, but mentally. i have tried several times to get court papers and everything else and nobody will give them to me.
is there a way to do that? if so, how would i go about doing it? paul: those miranda issues have to be raised immediately at the time of trial. you cannot raise them later on. it becomes too collateral to allow it on a habeas corpus or something like that. susan: the supreme court anticipated that there would be a flood of cases that had been tried before this decision, so they put a marker down. the june 1, 13 rule. that, to me, was confusing. if it is a right, it is a right. not one set by time. paul: there were a number of appeals that were filed before then. there were cases of murderers --
there was one case in new york where someone had knifed four or five people and killed them. that confession, which was perfectly valid when the police had obtained it, because they did not have miranda cards or rules, was thrown out. an interesting book called "the self-inflicted wound." he said, whatever you think about the miranda decision, not applying it to prior cases created the spectacle of bloody murderers walking free. jeffrey: there are other big criminal procedure decisions that are not retroactive. remember telford taylor, the great advocate for new york. that is the line they drew. susan: we are going to go back to the phoenix police detective talking about the impact of this
decision on him, his fellow officers, and what they thought about it. let's listen. >> they thought the police had abused these individuals, taken advantage of them. therefore, the police were bad guys. in the minds of a lot of people. those people that knew the facts did not see it that way. but you have to look at the general public. so there was an impact on me. i felt like i had been put in an awkward position. that i had been somewhat -- people thought that we had abused him. it was the most friendly conversation you could have. like talking to an old friend. we did everything according to the book, in my opinion. i was very surprised. i thought, when i first heard it
was going to the supreme court, i did not even know about the state supreme court having already looked at it and upheld it. i thought, i do not think we are going to lose it because i think we did a good job, in my opinion. when it turned out different than i thought it would -- as a police officer, you accept those things. if that is the way they want us to do business, that is the way we will do business. there is not much i could do. all i could do was say, i think the supreme court made a mistake. we do the job according to what they tell us to do. sometimes, the results are negative because we have less convictions, more crime because a lot of people are turned back into society and continue to do their evil. hey, no skin off my nose
when these guys go back to work. we will just try to catch them again. susan: a retired police detective, the arresting officer in the case that went to the supreme court, talking about the impact on his life and career. another personal story on the table. this is patrick leahy, democratic senator from virginia. at the time miranda came around, he was in vermont in the state's attorney's office. he tells us about its effect on the state. senator leahy: at that time, it was very controversial. what do you mean we have to read formerilty, accused -- a attorney used that expression once before, the guily accused. "what do you mean we have to
tell them their rights?" i said, of course you do. think of it this way. what if you were arrested for something? and they got the wrong guy. wouldn't you want to know what your rights are? that sunk in pretty heavily. susan: he also said he had little cards with the miranda rights on them and pass them out to police officers around the state as he was educating. lots of comments here. he writes that every lawyer knows that police found a myriad of tactics for even miranda. refining the decision was and is ongoing. paul: i've done a lot of research on the effects of miranda. before miranda, if you go back to the start of the 1960's, you are looking at about a 60% crime clearance rate in this country.
immediately what you see in 1966, 1967, and 1968, a dramatic reduction in crime clearance rates. they fell around 45% and have remained there in the 50 years since. if you quantify that, that means about 60,000 violent crimes and more than 100,000 property crimes each year go unsolved, even if you control for other factors. it is not just reading the words off the cards that miranda requires. it also forbids police from asking questions if somebody refuses to allow questions to occur. that is the damaging blow that miranda inflicted on law enforcement in this country. it truly did handcuff the cops. jeffrey: this is a very important empirical debate. paul has made a very strong contribution to it. here are some of the big statistics on the other side. they are offered by people like camazar. he notes that the current view is that the impact on conviction rates is negligible.
typically around 25% of suspects invoked their rights to silence. carefully-conducted studies indicate that in 55% to 65% of interrogations, the police succeed in obtaining incriminating statements. this is an important statistical debate. we can go back and forth. i do endorse the view that, after having initially resisted miranda very strongly president , nixon denounced it. the police in the 1980's and 1990's, accepted miranda for the reason that the caller states, that it is so easy to get around. all you have to do is say the magic words and then you can resort to the same trickery, deception, subtle pressures that allow people to confess in ways that go against their interest.
miranda did not require the people to make good decisions about whether or not they confess. unless you believe in divine absolution, it is not a good idea to confess if you are guilty. miranda did make it easier for the police to inoculate themselves against future challenges. for that reason, i think a prevailing view among many law enforcement officers is that miranda is not bad for the police. susan: just to get it on the record, in addition to miranda, there were a suite of policing-related decisions that the court took on. a number of them on the screen. mapp v. ohio, which we told two weeks ago in our series. gideon v. wainwright. escobedo v. illinois.
which did what? paul: that was the building block for miranda. host: then miranda and 1966 and terry versus ohio. >> terry versus ohio allows them to stop someone who is suspected of a crime and frisk them because they might be carrying a weapon. susan: we talked about the controversy of this decision. the court really argued it strongly on both sides as well. you mentioned president nixon campaigned on a law and order campaign. congress also got into the act and passed the crime control and safe streets act in 1968. what were they trying to do? paul: congress was outraged by the miranda decision because criminals were going free and there was expected to be a dramatic affect on law enforcement. in 1968 congress passed a law reestablishing the old voluntary
meeting of confession in federal court. susan: we have 20 minutes left and i want to talk about what has happened in the years ensuing. there have been a number of cases that have begun to refine miranda. what are the important ones to know about? jeffrey: the most important one is the one that upheld it. paul had a crucial role in it. i will let him tee it up. we should go back and forth about it. but essentially the argument was that the court should reinstate the test that congress had embraced in 1968 and admit confessions if they were voluntary, defined as factors as time elapsed between arrest and arraignment. what is significant about the dickerson case is that not a single administration had defended it.
neither from johnson through the bush administration. no president had insisted that the substitute for miranda -- therefore, the court surprised a lot of people. it was one of the most dramatic decisions of the rehnquist court. after decades of criticizing miranda, chief justice rehnquist himself cast the sixth vote to uphold it. they are acting not against the wishes of subsequent white houses, but in conjunction with them. susan: it ended up being a 7-2 decision. this was 2000. the judge was asked to give a friend of the court argument that miranda should be overruled. tell us your perspective. paul: i argued in defense of the 1968 statute. the history that jeff is
referring to is disputed. president johnson said we are not going to want to enforce this law. president nixon said it should be argued in court. i argued as a friend of the court. one of the strange things that happened -- why is a law professor arguing in defense of the statute? the clinton administration refused to defend the law even , though there were strong arguments on its behalf. that set the stage for the ruling against it. if the clinton administration had sent their solicitor general to defend the law, i think things might have come out differently. susan: there is a bit of what chief justice william rehnquist wrote. "we hold that miranda, being a constitutional decision of this court, may not be overruled an act of congress and we decline to overrule miranda ourselves."
jeffrey: it is a remarkable decision. chief justice rehnquist has said that miranda is not a constitutional decision and he would come to the edge of overruling it. he shocks everyone by upholding it. why does he do this? one thing he says is that miranda has come to be accepted by the culture. this causes justice scalia -- his head almost explodes. he said the court has converted miranda into the cheops pyramid of judicial arrogance. i didn't know what that was or how to pronounce it be or justice -- before justice scalia that reminded us cheop was a king who was so arrogant that he believed he could build the biggest pyramid and history and killed a lot of people doing that. justice rehnquist was a pragmatist.
he had been the lone ranger and a bit more pure in his constitutional abuse. we saw those tv warnings. we saw the fact that this symbolized law enforcement across the board. that combined with the fact that the other justices thought cops had accepted it. i made powerful argument, a case brought in good faith. 7-2 rejected it. susan: pete is in georgia. you are on the air. caller: my question is about the case in 2013. some of the inherent weaknesses in miranda were on full display. we see a very divided court.
i think the upshot of that case is that you have to presently invoke -- explicitly invoke your right to silence, you cannot just be silent. that assumes that you know those rights and the police cannot take that opportunity away from you, but don't not certainly have to give you the cue. can you explain that case, and do you think it has been rightly decided? paul: that is one of the follow-on cases. one of the things that is remarkable about miranda, the basic framework is still applied today. i view that differently than jeff does. some people look at the dickerson decision and say that was a bullet that was dodged. i see dickerson and some of these other decisions as opportunity missed. we have not updated miranda at all in the last 50 years. we have not looked at emerging technologies like videotaping.
if i am an innocent person being questioned by a police officer, i would much rather have a video camera running to make sure there are not threats being used in the office can be constructed later. the only thing i get is a -- the officer reading a few words off a card and making me sign a waiver form. we need to think about new ways of implementing miranda that not only protect suspects, but give law enforcement the ability to ask a few more questions. susan: next is brian in washington. caller: the speaker who just spoke is keen on having police officers ask more questions. my question is, does he believe the police should keep on asking questions when the suspect says i don't want to talk?
miranda says that the police have to stop questions at that point. does he believe that that right should not exist? paul: i think what we ought to be doing is changing the miranda rules so they do not have these hard and fast question cutoff rules. i call this the mother may i rule of police questioning. police officers have to give a warning and a waiver to someone in order to ask questions if , someone says they do not want to answer questions, they cannot ask even reasonable questions. i would allow police officers to continue to ask questions so long as they were not extracting an involuntary confession. jeffrey: if i could just jump in on unequivocally endorsing paul's suggestion of videotaping interrogations. we are having huge debate right now about the use of body cams. iphones are transforming encounters between cops and citizens.
the american law institute is trying to come up with rules for body cams. there are plenty of civil libertarians who agree that videotaping interrogations would help police and suspects. that does not necessarily mean that miranda should be thrown out as well. both could be good. there is also no doubt, as paul said and as the previous caller suggested, the court has changed since the rehnquist court reaffirmed the dickerson decision in cases like that salinas case and the tompkins case from 2010. the suspect does not invoke his miranda rights and the court says that he waived his right because he failed to do so unambiguously. the dissenters saying the court is cutting back on miranda. this is not a decision that has as broad support as it did at the time of dickerson.
it remains hotly contested. youn: on twitter, "can comment on the effects of the berghuis v. thompson decision?" be an affirmative action on part of the suspect. paul: that is such a unique fact pattern. somebody sits quiet for 90 minut es and eventually makes a statement. this kind of decision, salinas in 2013 and thompkins in 2010, have covered those patterns. day-to-day law enforcement, i do not think we had seen change. that is not just my view on the data. if you look at fbi data, the crime clearance rate is the same as it was in 2010 and 1970. police in america today are less
effective at clearing and solving crimes than they were before the warren court started handing down it decision. jeffrey: the aclu criticized the court in thompkins for cutting down on miranda, opening the door to prolonged interrogations intended to wear suspects down. the u.s. attorney general said the new flexibility would ease the burden on military intelligence and police and provide a more flexible response to terrorism. these provisions are having an effect. susan: kevin in tucson. caller: my question concerns shifts in the american law enforcement policy in the 1960's. with the implementation of the exclusionary rule and other rulings, including miranda v. arizona, i am wondering if it was the court itself that helped shift policies or public opinion and the turbulence surrounding questionable law enforcement
policies, especially in the south in the 1960's? susan: thank you very much. jeffrey: such a superb question. i would like you to read the late william stutz' book about the relationship between public proceeding and criminal procedure. among the many good points that he makes, it is that the court tends to mirror broader society trends rather than cause them. when crime in the 1960's went down, the court became more liberal. when it went up in the 1970's, it became more conservative and vice versa. the notion that the court transforms society does not seem right. on the other hand, it was called a revolution for a reason. it did change the rules that police operate under in a significant way. and it came to symbolize the importance of respecting what
warren called the dignity of the individual. twitter, a question, did miranda work? most waive their rights and hope of gaming the system aimed controlling -- and controlling the police interrogation. we have about seven minutes left. i want to tell you we just have one more in our 12-part series. if you have missed any of it or want to learn more about the cases, we have a very robust website with lots of background on these cases. and also more video attached to each one of them. you also can buy a book that we have copublished. it is called "landmark cases" and is written by tony mauro. you can find it on our website. you can give it for the holidays if you want to give it to a fan in your family. it gives you background and the legacy of all the 12 cases
featured in the series. i want to get to a couple more calls and then we will wrap this up. next is pam in irving, texas. caller: i just wanted to ask a quick question. do you think with the terrorism and everything that we are facing now in this more modern era, you know, the 50 years that it has been, do you think it is time to update or change miranda in some way? jeffrey: descriptively, we know that if fears of terrorism are increasing and people want the government to be tougher on crime and if you are predicting, i think it is unlikely that the court would hold miranda to terrorist suspect interrogated abroad. on the other hand we are having , a huge debate in this country about police brutality, over criminalization, the treatment of african-american citizens. that could go the opposite direction.
with the new sensitivity, there could be the importance of human dignity and the fact that all these encounters are being caught on camera makes it harder for the police to engage in incommunicado conduct that they used to. for those reasons, i do not think miranda is going to go away anytime soon. question, ifter there are no consequences for wrongful police conduct, then what will dissuade it? paul: if there is an involuntary confession, that should not be admitted. miranda puts in place a series of highly technical procedural rules and throws out perfectly good confessions because the police have made some kind of mistake along the way. that is the real problem. we talk about human dignity. one of the things that has changed a little bit in the last 50 years is we now have a much more robust victims rights
movement. a lot of books have been written telling the miranda story but no , one has told the story of patricia, the young woman who raped by miranda. i think that is a change for good. susan: ed in connecticut. caller: does the supreme court take a macro view of the legal system for self-assessment? a results focus, both good and bad? for example, the u.s. incarceration rate is the highest in the world. that might be on the bad side. on the other side, crime is declining. do they ever take that into consideration? jeffrey: great question. if professor stutz and others are right, at least they are channeling it somehow. what is striking is how unempirical many of these decisions are. they are written at a level of abstraction there is not a lot , of engagement with law enforcement officials themselves, either victims or the accused.
for all those reasons, much of the most interesting work in policing nowadays is being done not in the courts and constitutional decisions, but regulations in police departments passed by states. illinois and others, almost every state is grappling with questions of body cameras and police interrogation. these are often legislative decisions. the professor might even agree that for legislatures to grapple with this is appropriate and it's good to focus on the fact on the ground. susan: but if there are different rules? paul: one of the things that maranda did that has been its biggest harm to america is it petrified the law of police interrogation. essentially the rules today are today in 2015 are the same as they were in 1966. just as we have made advances in medicine and auto safety, we could make advances in the way we regulate police interrogation, advances that
allow both police to get more confessions and at the same time provide protections for suspects. but because brenda says is a constitutional right, made those changes essentially impossible. susan: we will wrap this up by listening to earl warren's grandson, jeffrey earl warren, who shares with us some family history. his grandfather's view of what the miranda decision and other policing decisions did for society. let's watch. >> i would like the court to be remembered as the court of the people. no one can say how the opinions of any particular court or era will stand the test of time. all one can do is to do his best
to make his opinions conform to the constitution and laws of the united states and then hope that they will be so considered in the future. >> this is the binder of letters that i have come -- have from papa warren. in 1969, he decided to resign. i had been at the university of california. i had written him a very letter, howid-like we were going to burn everything down and that i would never bring children into this world because it was such a mess. he writes back to me, i will just read a couple of sections. "the world is not perfect because human nature is imperfe ct." if all of these laws were obeyed, many of our problems would be solved or we would be in manageable shape for solutions. but we must also take
into consideration" and he underlines, "human nature." he goes on to say that we do not want to burn everything down because the result will be, and he underlines "anarchy." they are almost always replaced by autocracies that rule presently. who suffers most under them? the minorities, of course. then he finishes, "i know that i have not resolved any of your perplexities, but my hope is that in the young people of today. i believe they can and they will bring to bear the strength of their idealism to right the wrongs that regretfully have been done by former generations, and particularly by my own. affectionately, grandpa. susan: earl warren, former chief justice's communication to his son. last word on what was discussed tonight.
paul: earl warren's legacy is a mixed one. unfortunately miranda illustrates that. it is an example of criticizing the courts. once the justices become nothing more than politicians in robes, we have bitter confirmation battles and the sort of thing we have seen playing out over the decades. jeffrey: what a beautiful clip. what a great name. i love the god bless america. that shows his fundamental concern was translating the
he was a shining" for human dignity. into the best of you can do in the context of the law. suggesting ise time for society to rethink it. i think it is. i think it can be updated and more effective. i think it would be an effort that a lot of people hopefully can all come together and say things about quality camera. other things that would update miranda. >> things to both of you for being here tonight. we appreciate your insight on the miranda case. always, think you so much for being in our audience tonight.
the 1973 decision -- decision roe versus wade. in that case the rule seven to choose that a woman's right to an abortion was constitutional. it did maintain that the right was not absolute giving state the ability to get based on viability of this. learn more about the decision monday night at nine c-span. find out more about c-span's landmark cases series online by going to c-span.org/landmark cases. and from the website you can featuring background in the legal impact of each case. published by c-span in cooperation with cq press. next, a discussion on how muslims are pictured in the media.
.hen a presidential candidate all meeting in new hampshire. three days after the san bernardino shooting, they have their annual convention in long beach california. this is a discussion of american muslims in the media. panelists include the head of diversity is cbs. the president of this group also discussed with the san bernardino shooting means for muslims in america. this is one hour and 20 minutes area. good afternoon everyone. i'm happy to assert of the council for over a decade. we are happy to take off our final and convention 15 session.
we come here to culminate with this session before we have our banquet in a few hours. before we begin this session, i would like to introduce the cofounder and president who will kickoff the and convention. >> in the name of god most gracious and merciful. thank you for joining us. i hope you plan on staying with us for the banquet tonight. it is our 15th annual. we started these events shortly go. but we are growing. will see tonight hopefully how the impact has become a national voice on some of these issues. tonight in today this convention